The Australian Workers' Union v AVK Currumbin Pty Ltd
[2022] FWC 2771
•17 OCTOBER 2022
| [2022] FWC 2771 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
The Australian Workers’ Union
v
AVK Currumbin Pty Ltd
(B2022/1541)
| DEPUTY PRESIDENT DEAN | CANBERRA, 17 OCTOBER 2022 |
Proposed protected action ballot of employees of AVK Currumbin Pty Ltd.
The Australian Workers’ Union (AWU) has made an application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act 2009.
The application seeks to ballot employees of AVK Currumbin Pty Ltd (AVK) who are members of, and represented by, the AWU for a proposed agreement to replace the AVK Currumbin Pty Ltd Enterprise Agreement 2019 which has a nominal expiry date of 30 September 2020.
AVK opposed the making of the PABO. A hearing was held on 17 October 2022. Mr Geoff Taylor appeared for the AWU and Mr Evan Roiniotis (CEO) appeared for AVK.
Section 443 of the Act sets out the circumstances in which a protected action ballot order must be made. It provides, relevantly:
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
AVK contends that the AWU has not and is not genuinely trying to reach an agreement in accordance with s.443(1)(b). It submits:
a.AVK received the last proposal from the AWU in December 2021.
b.AVK put forward proposals to the workforce and the AWU in April and July 2022.
c.At the AWU’s request, AVK revised the wage element of the proposal and put a further proposal in October 2022.
d.No response has been received from the AWU and the AWU does not currently have a proposal on the table for the consideration of AVK.
In addition, AVK objects to the application based on its view that further negotiations could result in agreement being reached between the parties.
The AWU submits that AVK’s claim is baseless and points to the fact that AVK has accepted that emails have been exchanged between the parties and meetings have taken place since December with a view to reaching agreement. The AWU argues that the email containing AVK’s revised proposal was sent directly to the employees and the union was not made aware of it until after the application for a PABO was lodged.
As to the contention that the union does not currently have a proposal on the table, the AWU points to an email from Mr Roiniotis (CEO of AVK) saying that AVK would not be seeking further offers from the AWU and that they intended to put the offer out to a vote. It contended that AVK’s claim that the AWU does not have an offer on the table is therefore disingenuous.
The AWU relied on a declaration filed with the application from Mr James Downie (Organiser) setting out the steps taken by it in bargaining with AVK and claiming that it has been, and is, genuinely trying to reach agreement.
Mr Roiniotis gave evidence during the hearing to the effect that AVK had made offers in April, July and October 2022 to which the AWU did not respond, other than indicating that the wage offer was not enough. Mr Roiniotis also gave evidence, which was not challenged, to the effect that the AWU had made no effort to understand the wage offer made by AVK as it was at least as much as the AWU had requested in its log of claims provided in December 2021.
It is unfortunate that the AWU has not engaged in any real sense with the proposals put the AVK in April, July and October 2022. The AWU chose not to cross examine Ms Roiniotis and so I accept his evidence that the wage offer currently put by AVK provides wage increases at least as good as that which was claimed by the AWU in December 2021. The AWU, in its oral submissions, indicated that wages were the key item for its members.
While the evidence of Mr Roiniotis raises a concern as to whether the AWU are bargaining in good faith, this is a separate matter to whether the requirements of s443 have been met.
Consideration
There is no dispute and I am satisfied that the requirement of s443(1)(a) has been met.
In respect of s443(1)(b), the determination of whether an applicant has been and is genuinely trying to reach an agreement requires an assessment of the circumstances of each case, with these words to be given their ordinary meaning.
The question of whether a bargaining representative has been and is genuinely trying to reach an agreement was considered in JJ Richards & Sons Pty Ltd v Fair Work Australia[1], where Flick J said:
“[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:
· an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
· the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:
· bargaining to have commenced within the meaning of and for the purposes of s 173, found within Part 2-4, of the Fair Work Act.
[59] So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement ...”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” – on one approach to construction – perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement – let alone genuinely tried to reach agreement.
[60] The Transport Workers’ Union, in the present proceeding, satisfied that requirement by writing to J.J. Richards on 24 December 2010. Rightly or wrongly, J.J. Richards indicated its response in the terms it did in its letter dated 7 January 2011. That exchange of correspondence was sufficient to satisfy the precondition to the exercise of the power conferred by s 443(1).”
In Total Marine Services Pty Ltd v Maritime Union of Australia[2], the Full Bench expressed the following views about s.443(1)(b):
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
Importantly, there is no specific stage in the bargaining or negotiations that must be reached in order for there to be a finding that an applicant is, and has been, genuinely trying to reach an agreement with the employer.
Further, there is no reason why a bargaining representative may not legitimately pursue protected industrial action during the course of bargaining as a legitimate means of furthering its genuine desire to reach agreement. This point was emphasised by a Full Bench of the Commission in Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd[3] as follows
“In and of itself, a bargaining representative making a particular strategic choice which is permissible under the bargaining scheme established by the Act, is not a basis on which to conclude that the bargaining representative is not genuinely trying to reach an agreement or that the bargaining representative has some extraneous intent or purpose. Recourse to protected industrial action and applications to facilitate that action, are an accepted means by which a bargaining representative may further the interests of those it represents”.
Having considered the materials and evidence before me in the context of the authorities referenced above, I am on balance satisfied that the AWU have met the absolute minimum requirements to satisfy s.443(1)(b) of the Act.
It is not in dispute that the AWU provided a log of claims in December 2021 and have attended some meetings and engaged in email exchanges with AVK since that time. This in my view is the minimum necessary to satisfy the requirement of s.443(1)(b).
Accordingly, the Commission must make a protected action ballot order.
An order will be separately issued.
DEPUTY PRESIDENT
Appearances:
G Taylor, for The Australian Workers’ Union.
E Roiniotis for AVK Currumbin Pty Ltd.
Hearing details:
2022.
By telephone:
October 17.
[1] [2012] FCAFC 53.
[2] [2009] FWAFB 368.
[3] [2014] FWCFB 2587 at [73].
Printed by authority of the Commonwealth Government Printer
<PR746864>
0
0
0